McTAVISH VS. CABROLL. 163

In the account marked A, stated by the auditor, these sums
thus unappropriated by either the debtor or the creditor, are
applied to the satisfaction in part of the mortgage debt, which
the Auditor supposes, for the reason given by him, to be the
proper application. By this account, there remains an unap-
propraited balance of $2480 56, after paying the complainant's
claim; one moiety of which is assigned to Jacob Snively, and
the other to the defendant.

In account B, stated according to the views of the complain-
ants, the residue is reduced to $1489 93, which is assigned to
the same parties in like proportions.

Exceptions have been filed to these accounts by the parties
interested; the one side, insisting upon the propriety of the
application of the payments in the one account, and others in
the other.

The Chancellor thinks, that the appropriation of the pay-
ments made by the Auditor in the account A, is the proper one,
that is, to the payment of the mortgage debt, as being most
beneficial to the debtor.

The general rule upon the subject of the appropriation
of payments, is laid down by the Court of Appeals, in the case
of Mitchell vs. Hall, 4 Gill ^ Johns., 301, giving the right to
the debtor, in the first place to make the application, and then
upon his omitting so to do, to the creditor.

In this case, however, there was no appropriation of these
payments made by either party, and the question is, how, in the
absence of such appropriation, will the law apply them ?

It was said by the general court, in the case of Gwinn vs.
Whittaker, 1 Harr. & Johns., 754, that if a party is indebted
on mortgage and simple contract, and making a payment, ne-
glect to apply it, the law will apply it to the mortgage or bond,
as most beneficial to the debtor. And in the case of Dorsey
vs. Gassaway, 2 H. & J., 402, 412, the same court said, that
such was the undoubted rule, where no particular appHcation,
by either party was made. There was an appeal in this last
case, and the judgment of the general court was affirmed by
the appellate court.